BUTERLEVICIUTE v. LITHUANIA - 42139/08 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 35 (12 January 2016)

In the case of Buterlevičiūtė v. Lithuania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Vincent A. De Gaetano,
          Nona Tsotsoria,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Iulia Antoanella Motoc,
          Gabriele Kucsko-Stadlmayer, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 8 December 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 42139/08) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Vitalija Buterlevičiūtė (“the applicant”), on 4 August 2008.

2. The applicant was represented by Mr Ž. Rutkauskas, a lawyer practising in Panevėžys. The Lithuanian Government (“the Government”) were initially represented by their Agent, Ms E. Baltutytė, and subsequently by their Agent, Ms K. Bubnytė.

3. The applicant alleged, in particular, that she had not been informed of court hearings concerning her suspension from her post.

4. On 12 April 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1966 and lives in Panevėžys.

A. Criminal case against the applicant

6. The applicant was employed as the head of a municipal kindergarten in Panevėžys.

7. On 11 December 2007 she was informed by the local office of the Special Investigation Service that, as a person of equivalent status to a civil servant, she was under investigation on suspicion of fraudulent management of accounts, abuse of office and forgery of documents. In May 2008 she was informed of additional suspicions against her concerning further acts of abuse of office, forgery of documents and misappropriation of property.

8. In June 2008 the applicant submitted a request to the pre-trial judge to terminate the criminal investigation on the grounds that it had been excessively long. The judge refused the request, noting that the investigation had been completed earlier that month and the case was ready for trial.

9. On 4 July 2008 the case was referred for judicial examination. On 13 July 2009 the Panevėžys District Court (hereinafter “the first-instance court”) found the applicant guilty on several of the charges against her. She was sentenced to a fine of 2,600 Lithuanian litai (LTL, approximately 753 euros (EUR)) and a prohibition on working for the civil service for two years and six months.

10. The judgment was amended on appeal: on 19 February 2010 the Panevėžys Regional Court (hereinafter “the appellate court”) upheld the applicant’s conviction on some of the charges and acquitted her on several others. Her sentence was reduced to a fine of LTL 1,820 (EUR 527) and a prohibition on working for the civil service for one year and nine months. Soon afterwards the applicant was dismissed from her job by the Panevėžys City Municipality in line with the decision of the appellate court.

11. By a final judgment of 16 November 2010 the Supreme Court of Lithuania upheld the reasoning of the appellate court but changed the applicant’s sentence. The Supreme Court found that when determining the length of the applicant’s prohibition on working for the civil service, it was necessary to take into account the fact that she had been suspended from her post during the criminal investigation (see paragraphs 12-19 below). As a result, the period of prohibition was reduced to one year and three months.

B. Proceedings concerning the applicant’s suspension from her post

12. Immediately after the launch of the criminal investigation against the applicant (see paragraph 7 above), on 12 December 2007 the first-instance court granted the prosecutor’s request to have the applicant suspended from her job as the head of the kindergarten for three months. The court held that there were grounds to believe that the applicant, as a person of equivalent status to a civil servant, might use her official position to hinder the investigation by, for example, destroying or fabricating evidence, or attempting to influence the witnesses in the case, who were her subordinates.

13. The applicant appealed against the decision, arguing that she could not be equated to a civil servant because she worked under an employment contract with the Panevėžys City Municipality. She further argued that all the important documents had already been collected from the kindergarten and all the relevant witnesses had been questioned, so there was no possibility for her to interfere with the investigation. The applicant also submitted that she had no prior convictions and had never been subject to any disciplinary action at work and that her employer’s evaluation of her had always been positive; thus there were no grounds to believe that she would use her official position to hinder the investigation. Lastly, the applicant submitted that her job in the kindergarten was her only source of income and therefore the suspension would cause significant difficulties for her and her young daughter, whom the applicant was raising alone. However, the appellate court dismissed the applicant’s appeal and upheld the reasoning of the first-instance court.

14. Subsequently the first-instance court granted the prosecutor’s requests to extend the applicant’s suspension from her post by further periods of one to three months on essentially the same grounds. The applicant appealed against all the decisions, raising the same arguments as before, but her appeals were dismissed by the appellate court (on 27 December 2007, 21 March 2008, 26 May 2008, 18 June 2008 and 6 August 2008). On 6 August 2008 the appellate court noted, inter alia, that the applicant was only suspended from holding a specific post in a particular kindergarten, so the suspension did not affect her ability to take a different job and thus obtain a source of income.

15. On each of the above-mentioned occasions the decision of the first-instance court was taken following a written procedure, while the appellate court held oral hearings (see paragraphs 23 and 25 below). Neither the applicant nor her representative was present at any of these hearings. The prosecutor was present at the hearing of 21 March 2008.

16. After the criminal case was referred for judicial examination (see paragraph 9 above), in October 2008 the first-instance court held an oral hearing in which it extended the applicant’s suspension from her post by two months on the same grounds as before. The applicant and her representative were present at the hearing. The applicant’s appeal was subsequently dismissed by the appellate court.

17. On 1 December 2008 the first-instance court in an oral hearing at which the applicant and her representative were present, terminated the applicant’s suspension from her post. The court found that almost all the witnesses had been questioned, so there were no grounds to believe that the applicant might attempt to influence them or otherwise hinder the investigation. The applicant returned to her job as the head of the kindergarten the following day.

18. However, on 12 December 2008 the appellate court overturned the decision of the first-instance court, finding that the investigation had not been completed yet, so there was still a risk that the applicant may hinder it. Since the appellate court was not authorised by law to adopt a new decision extending the suspension, the prosecutor submitted a new request for an extension to the first-instance court. During this period the applicant continued working as the head of the kindergarten.

19. On 16 January 2009 the first-instance court, in an oral hearing at which the applicant and her representative were present, renewed the applicant’s suspension from her post for a period of three months. However, on 12 February 2009 the appellate court allowed an appeal by the applicant against this decision and quashed the above extension ordered by the first-instance court. The applicant returned to her job and remained the head of the kindergarten until her dismissal in February 2010 (see paragraph 10 above).

C. Articles about the applicant in the media

20. On 20 December 2007 the applicant submitted a complaint to the Inspector of Journalistic Ethics concerning several articles in the Panevėžio rytas newspaper. The publications commented on the criminal case against the applicant and presented statements from her subordinates criticising her competence and personality. The applicant complained that these articles had been defamatory and insulting. She also complained about a comment posted by a user on the website of the Lietuvos rytas newspaper which insulted the applicant and her young daughter on the grounds that the applicant was a single mother.

21. On 9 June 2008 the Inspector of Journalistic Ethics partly satisfied the applicant’s complaint. The Inspector found that the comment on the website of Lietuvos rytas was insulting to the applicant and her daughter and ordered the newspaper to remove it from the website. With respect to the articles in Panevėžio rytas, the Inspector held that the applicant was a public figure and therefore had to accept a greater level of media attention and criticism. The Inspector also found that the statements about the applicant in the articles in question reflected the opinions of the interviewed individuals, so the newspaper could not be held accountable for their factual accuracy.

22. The Inspector’s decision indicated that it could be appealed to the court within thirty days. The applicant did not appeal.

II. RELEVANT DOMESTIC LAW

23. At the material time, Article 157 of the Code of Criminal Procedure provided:

Article 157. Temporary suspension from a post or temporary prohibition from engaging in particular activities

“1. During a criminal investigation, the pre-trial judge, at the request of the prosecutor, may temporarily suspend the suspect from a post or temporarily prohibit him or her from engaging in particular activities if this is necessary to ensure a speedier and more objective criminal investigation or to prevent the suspect from committing further criminal acts. The decision to temporarily suspend the suspect from a post shall be forwarded to the suspect’s employer.

2. Temporary suspension from a post or temporary prohibition from engaging in particular activities shall not last longer than six months. If necessary, this measure may be extended for a further three months. The number of extensions may be unlimited.

3. The decision to temporarily suspend the suspect from a post or to temporarily prohibit him or her from engaging in particular activities, as well as the decision to extend this measure, may be appealed to a higher court by the suspect or his or her counsel within five days after this decision is delivered. The decision of the higher court shall be final and not subject to appeal.

4. After the case is referred for judicial examination, the decision on temporary suspension from a post or temporary prohibition from engaging in particular activities shall be taken by the court to which the case has been referred.

5. Temporary suspension from a post or temporary prohibition from engaging in certain activities shall be lifted by the prosecutor (during the criminal investigation) or the court (after the case has been referred for judicial examination) when this measure is no longer necessary.”

24. At the material time, Article 121 § 4 of the Code of Criminal Procedure provided:

Article 121. General provisions on ordering restrictive measures

“4. When deciding whether it is necessary to order a restrictive measure, or when choosing a particular measure, the pre-trial investigation officer, prosecutor, judge or court must take into account the seriousness of the charges against the suspect, the suspect’s personality, whether he or she has a permanent place of residence and a job or other legal means of subsistence, the suspect’s age, state of health, family status and other circumstances which may be relevant when ordering a restrictive measure.”

25. At the material time, the relevant parts of Article 441 § 3 of the Code of Criminal Procedure provided:

Article 441. Examination of appeals before a higher court

“3. An appeal shall be examined in an oral hearing in which the prosecutor and the appellant may participate ... Their absence shall not impede the examination of the appeal, provided that they have been notified in due time of the date of the hearing.”

26. At the material time, Article 244 § 1 of the Code of Criminal Procedure provided that the court may adjourn the hearing if any of the notified parties had not appeared. Requests for adjournment (as well as other procedural requests) to the courts could be submitted by the suspect, the accused, the victim, and the defender, in accordance with Articles 21 § 4, 22 § 3, 28 § 2 and 48 § 1 (8) of the Code of Criminal Procedure, respectively.

27. Other relevant domestic law and practice concerning notification of court hearings are summarised in Švenčionienė v. Lithuania, no. 37259/04, §§ 13-18, 25 November 2008.

28. At the material time, Article 230 § 3 of the Criminal Code provided that a person who works at any governmental, non-governmental or private institution, undertaking or association, or engages in professional activity, and holds administrative powers or provides public services, except those who perform logistical or technical functions, shall be considered of equivalent status to that of a civil servant.

29. At the material time, the relevant parts of Article 123 of the Labour Code provided:

Article 123. Suspension from work

“1. ... [T]he employer may suspend an employee from work (duties) only on the grounds established by law.

2. The employer shall suspend an employee from work without paying him or her any salary upon the written request of officials or bodies entitled by law to order such a suspension. Such a request shall specify the period for which the employee is suspended, the reason and legal grounds for the suspension ...

4. Upon the expiry of the period of suspension, the employee shall be reinstated in his or her former position, provided that suspension has not given grounds to terminate the employment contract.

5. If the employee has been suspended from work (duties) upon the request of the employer or officials from duly authorised bodies without good reason, he or she shall be entitled to claim damages in accordance with the procedure prescribed by law.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

30. The applicant complained under Articles 6 § 1 and 13 of the Convention that the domestic courts had decided on her suspension from her post without holding oral hearings, and where such hearings had been held, she had not been duly notified of them and thus had been unable to participate. The Court considers that this complaint falls to be examined solely under Article 6 § 1, the relevant part of which provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”

A. Admissibility

1. Incompatibility ratione materiae

31. The Government submitted that the applicant’s complaint fell outside the scope of the civil limb of Article 6 § 1. They argued that the right to remain in one’s job was a labour right, regulated by the Labour Code, and thus did not constitute a “civil right” within the meaning of Article 6 § 1 of the Convention. The Government also submitted that the proceedings in question had not been directly decisive for the determination of the applicant’s civil rights and obligations, as they had only affected her ability to work as the head of a particular kindergarten and the imposed restriction was temporary. Accordingly, the Government requested the Court to reject this complaint as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a).

32. The applicant did not comment on that point.

33. The Court firstly notes that it is not disputed that the criminal limb of Article 6 § 1 of the Convention does not apply to the proceedings in question, as they did not concern the determination of any criminal charge against the applicant (see Patsuria v. Georgia, no. 30779/04, § 90, 6 November 2007).

34. The Court next reiterates that for Article 6 § 1 of the Convention to be applicable under its civil limb, there must be a genuine and serious dispute over a right that can be said, at least on arguable grounds, to be recognised in domestic law. The dispute may relate not only to the actual existence of the right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for that right (see, among many other authorities, Fazliyski v. Bulgaria, no. 40908/05, § 51, 16 April 2013).

35. In the present case, the Court observes that the right not to be unfairly suspended from her post was guaranteed, in substance, by Lithuanian law (see paragraphs 23 and 29 above). The Court has no reason to doubt that the dispute over the applicant’s suspension from her post was genuine and serious. It also notes that the court proceedings were directly decisive for the question of the applicant’s suspension from her post.

36. It remains to be established whether that right can be characterised as “civil” within the meaning of Article 6 § 1 of the Convention. In this connection the Court reiterates that whether or not a right is to be regarded as civil in the light of the Convention must be determined by reference to the substantive content and effects of the right, and not only its legal classification under the domestic law of the State concerned (see König v. Germany, 28 June 1978, § 89, Series A no. 27; Leela Förderkreis e.V. and Others v. Germany, no. 58911/00, § 44, 6 November 2008; and Shapovalov v. Ukraine, no. 45835/05, § 43, 31 July 2012).

37. The Court reiterates that the right to freely practise one’s profession and to continue to practise it constitutes a civil right (see Philis v. Greece (no. 2), 27 June 1997, § 45, Reports of Judgments and Decisions 1997-IV; Voggenreiter v. Germany, no. 47169/99, § 44, ECHR 2004-I (extracts); and K.M.C. v. Hungary, no. 19554/11, § 29, 10 July 2012). The Court has previously held that the civil limb of Article 6 § 1 was applicable to proceedings concerning a temporary suspension of the right to practise one’s profession (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 49, Series A no. 43), as well as proceedings in which the applicant risked expulsion from a professional association even when that would not have precluded him from practising his profession as such (see A. v. Finland (dec.), no. 44998/98, 8 January 2004). Accordingly, the Court considers that the applicant’s suspension from her post concerned her civil rights, irrespective of the fact that the suspension was temporary, or that it did not preclude the applicant from being employed in a different workplace.

38. The Court further notes that in the domestic proceedings the applicant was considered as “a person of equivalent status to that of a civil servant” and that she contested this characterisation (see paragraphs 7, 12 and 13 above). In this respect the Court notes that the domestic law distinguished between “civil servants” and “persons of equivalent status to that of a civil servant” (see paragraph 28 above), and that the domestic authorities considered the applicant as falling under the latter category. In any event, the Court reiterates that the civil limb of Article 6 § 1 applies even to disputes involving civil servants if domestic law does not bar their access to a court (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007-II). In the present case, the applicant was granted access to a court to contest her suspension from her post. Thus, the Court considers that the applicant’s status as a person of equivalent status to that of a civil servant does not affect the applicability of Article 6 § 1.

39. In the light of the above considerations, the Court finds that Article 6 § 1 of the Convention was applicable ratione materiae to the proceedings in question and dismisses the Government’s objection.

2. Non-exhaustion of domestic remedies

40. The Government further submitted that the applicant had failed to raise a complaint concerning her right to an oral hearing before any domestic authorities, and requested the Court to reject it pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

41. The applicant argued that she had exhausted the available domestic remedies by appealing against all the decisions which ordered her suspension from her post.

42. The Court reiterates that where the Government claims non-exhaustion of domestic remedies, it bears the burden of proving that the applicant has not used a remedy that was both effective and available. The availability of any such remedy must be sufficiently certain in law and in practice, and it must be capable of providing redress in respect of the applicant’s complaints and of offering reasonable prospects of success (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009, and the cases cited therein).

43. Turning to the circumstances of the present case, the Court firstly notes that the Government did not indicate any particular remedies which would have enabled the applicant to complain about the lack of oral hearings before the first-instance court and lack of notification of the hearings before the appellate court.

44. As to the applicant’s complaint that no oral hearings were held before the first-instance court, the Court notes that the Code of Criminal Procedure did not require an oral hearing at that instance (see paragraph 23 above). Thus, any complaint by the applicant that the first-instance court did not hold an oral hearing, when a written procedure was foreseen in the domestic law, would not have had any prospects of success.

45. As to the applicant’s complaint that she was not notified of the oral hearings before the appellate court, the Court notes that the decisions of the appellate court were final and not subject to any further appeal (see paragraph 23 above). Accordingly, and absent the Government’s submissions to the contrary, the Court is not persuaded that the applicant had any effective domestic avenues to complain of the alleged procedural errors by the court whose decisions were final.

46. Therefore, the Court rejects the Government’s objection regarding non-exhaustion of domestic remedies.

3. Conclusion on admissibility

47. Having rejected the Government’s submissions concerning incompatibility ratione materiae and non-exhaustion of domestic remedies, the Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

48. The applicant complained that the domestic courts had decided on her suspension from her post without holding oral hearings, and where such hearings were held, she had not been duly informed of them and thus could not participate. In particular, the applicant claimed that she had not received any notification of the hearings held before the appellate court on 27 December 2007, 21 March, 26 May, 18 June and 6 August 2008. She contended that her absence from those hearings had prevented her from submitting arguments to the courts, requesting the removal of judges, and otherwise defending her rights.

49. The Government submitted that the Code of Criminal Procedure did not require a public hearing before the first-instance court when ordering a temporary suspension from a post. However, the decision of the first-instance court could be appealed, and the appellate court was required to hold a public hearing. The Government contended that such a practice was in line with the requirements of Article 6 § 1 of the Convention, especially since the proceedings in question had not concerned the determination of the applicant’s guilt but only a temporary restriction of her rights.

50. The Government further stated that the applicant had been notified of all the hearings before the appellate court. They provided copies of notification letters which had been sent to the applicant’s home address. The Government also provided a copy of the appellate court’s logbook of letters sent by standard post (Neregistruotų laiškų registracijos žurnalas), which indicated that all the relevant notification letters had been sent to the applicant by this type of post. They pointed out that the applicant had signed the logbook to confirm that she had received the notification of the hearing of 21 March 2008. According to the Government, that letter had likely been delivered to the applicant in person on 20 March 2008 and not sent by post, because of its urgency. The Government further submitted that since all the notification letters had been sent to the same address, it must be presumed that the applicant had received all of them.

51. Lastly, the Government submitted that the domestic law had not made the applicant’s participation in the hearing mandatory and had only required the courts to send her a notification (pranešimas) but not a summons (šaukimas). Therefore, it was sufficient that the letters had been sent to the applicant and it had not been necessary to record that she had received them.

2. The Court’s assessment

(a) Lack of oral hearings before the first-instance court

52. The Court reiterates that the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance, and the lack of a hearing before the first instance may be remedied at a later stage in the proceedings (see Lundevall v. Sweden, no. 38629/97, § 36, 12 November 2002).

53. In the present case no oral hearings were held before the Panevėžys District Court, which was the first-instance court examining the applicant’s temporary suspension from her post. However, the Panevėžys Regional Court, which reviewed the first-instance decisions on appeal, held oral hearings on each occasion. The Court notes that the review by the appellate court was not limited to matters of law but also extended to factual issues (see paragraph 23 above).

54. In such circumstances the Court finds that the lack of an oral hearing before the first-instance court did not constitute a violation of Article 6 § 1 of the Convention.

(b) Alleged lack of notification of the oral hearings before the appellate court

55. The Court firstly reiterates that Article 6 § 1 of the Convention does not guarantee the right to be present before the court in cases which do not concern a determination of a criminal charge, but rather a more general right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights (see Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59-60, ECHR 2005-II, and Artyomov v. Russia, no. 14146/02, § 201, 27 May 2010).

56. The Court also reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, Cudak v. Lithuania [GC], no. 15869/02, § 58, ECHR 2010). It considers that the right to a public hearing would be devoid of substance if a party to the case were not apprised of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise the right to appear established in the domestic law (see Yakovlev v. Russia, no. 72701/01, § 21, 15 March 2005).

57. In this connection, the Court observes that, at the material time, Lithuanian law provided for an oral hearing before the appellate court examining the applicant’s suspension from her post. However, the parties’ attendance was not mandatory, and if a party did not appear at the hearing after it had been duly notified, the court could proceed with the examination of the appeal (see paragraph 25 above). The Court considers that these provisions were not, in themselves, incompatible with the fair trial guarantees of Article 6 § 1 (see, mutatis mutandis, Groshev v. Russia, no. 69889/01, § 28, 20 October 2005).

58. The Court further reiterates that Article 6 § 1 cannot be construed as conferring on litigants a right to obtain a specific form of service of court documents, such as by registered post (see Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey, no. 21377/03, § 39, 21 January 2014, and Kolegovy v. Russia, no. 15226/05, § 40, 1 March 2012). Nonetheless, the Court considers that in the interests of the administration of justice a litigant should be notified of a court hearing in such a way as to not only have knowledge of the date and the place of the hearing, but also to have enough time to prepare his or her case and to attend the court hearing. A formal dispatch of a notification letter without any confidence that it will reach the applicant in good time cannot be considered by the Court as proper notification (see Kolegovy, cited above § 40, and the cases cited therein).

59. In the present case, the applicant complained that she had not been duly notified of five hearings before the appellate court (see paragraph 48 above). In response, the Government submitted copies of notification letters concerning each of those hearings and stated that those letters had been sent to the applicant’s home address by standard post. The Court notes that the Government did not present any evidence to show that the notification letters had reached the applicant and that she had received them in good time (see, mutatis mutandis, Gusak v. Russia, no. 28956/05, § 26, 7 June 2011).

60. The Court also notes that the Government provided a copy of the appellate court’s logbook, pointing out that the applicant had signed to confirm that she had received the notification of the hearing of 21 March 2008. According to the Government, that notification was delivered to the applicant in person on 20 March 2008 because of its urgency. While the Court accepts that notification in person is in principle consistent with the requirements of Article 6 § 1, it observes that in the present case that notification was delivered to the applicant only one day before the hearing. Accordingly, the Court is not persuaded that such a notification was in line with Article 6 § 1 (see Ziliberberg v. Moldova, no. 61821/00, § 39, 1 February 2005). At the same time, the Court notes that after the applicant found out about the hearing of 21 March 2008, she had the right to request the postponement of that hearing if she was unable to attend it or required more time to prepare (see paragraph 26 above), but she did not submit such a request. Nonetheless, the Court considers that due to the importance of that particular hearing (see paragraph 63 below), the authorities could not be absolved of their responsibility to duly notify the applicant.

61. The Court further notes the Government’s argument that all the notification letters were sent to the same address and therefore it must be presumed that the applicant had received all of them. The Court observes that the only time when the authorities could be confident that the applicant had received the notification was when the letter had been delivered to the applicant in person and not by post (see paragraphs 50 and 60 above). Accordingly, the Court is not persuaded that the authorities had any good reason to presume that the applicant was receiving the notification letters sent to her by standard post - especially since she had not attended five consecutive hearings.

62. On the basis of the foregoing considerations the Court concludes that it has not been proved that the applicant had been duly notified of the hearings held before the appellate court on 27 December 2007, 21 March, 26 May, 18 June and 6 August 2008.

63. In this connection, the Court reiterates that when determining whether Article 6 § 1 of the Convention has been complied with, it must take account of the proceedings as a whole (see, among other authorities, Perihan and Mezopotamya Basın Yayın A.Ş., cited above, § 40). In the present case, the Court notes that the appellate court was the only instance at which an oral hearing in the proceedings concerning the applicant’s suspension from her post was held (see paragraph 15 above). The judgments of the appellate court were final and not subject to any further appeal (see paragraph 23 above). Moreover, on one of the five above-mentioned occasions, the prosecutor was present at the hearing and made oral submissions in favour of the applicant’s suspension from her post (see paragraph 15 above). As a result, the applicant did not have an opportunity to effectively defend herself and to respond to the prosecutor’s submissions in an oral hearing (see, mutatis mutandis, Švenčionienė, cited above, §§ 27-28).

64. Moreover, the Court reiterates that although there is no absolute right to be present at the hearing when it concerns non-criminal matters, personal participation can be considered necessary in such cases where the character and lifestyle of the person concerned is directly relevant to the subject matter of the case, or where the decision involves the person’s conduct (see Karpenko v. Russia, no. 5605/04, § 90, 13 March 2012, and the cases cited therein). In the present case, the decision to suspend the applicant from her position as the head of the kindergarten was based on the possibility that she might use her position to interfere with the investigation - to destroy or fabricate evidence, or attempt to influence witnesses. The applicant argued that her previous conduct and positive evaluation by her employers had indicated that such interference was unlikely (see paragraph 13 above). The Court considers that the applicant’s character and conduct were of great relevance for assessing the risk that she might hinder the investigation and thus the need to order a restrictive measure - in this case suspension from her post (see, mutatis mutandis, Solovyevy v. Russia, no. 918/02, §§ 135-137, 24 April 2012). As a result, the Court considers that the subject matter of the proceedings made the applicant’s personal participation in the hearings before the appellate court necessary.

65. Lastly, the Court observes that there is nothing in the text of the appeal judgments to suggest that the appellate court examined the question whether the applicant had been duly notified, and, if she had not been, whether the examination of the appeal should have been adjourned (see Kolegovy, cited above, § 41, and Nikoghosyan and Melkonyan v. Armenia, nos. 11724/04 and 13350/04, § 40, 6 December 2007).

66. In these circumstances, the Court concludes that there was a violation of the applicant’s right to a fair hearing enshrined in Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

67. The applicant complained under Article 1 of Protocol No. 1 to the Convention and Article 6 § 1 of the Convention that suspension from her post left her without any source of income for more than one year, causing her grave financial difficulties, especially as she was the sole provider for her young daughter. The Court considers that this complaint falls to be examined solely under Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

68. The Government submitted that the applicant’s complaint concerned future income and therefore did not constitute a “possession” within the meaning of Article 1 of Protocol No. 1. Accordingly, the Government asked the Court to reject this complaint as incompatible ratione materiae with the provisions of the Convention and the Protocols thereto, within the meaning of Article 35 § 3 (a).

69. The Court reiterates that the applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decision relates to her “possessions” within the meaning of that provision. Article 1 of Protocol No. 1 does not guarantee the right to acquire property (see Kopecký v. Slovakia [GC], no. 44912/98, § 35 (b), ECHR 2004-IX) and future income constitutes a “possession” only if the income has been earned or where an enforceable claim to it exists (see Wendenburg and Others v. Germany (dec.), no. 71630/01, 6 February 2003, and the cases cited therein).

70. In the present case the Court notes that the disputed measure suspended the applicant from her job as the head of the kindergarten and, as a consequence, she was no longer receiving her salary. Since the applicant was temporarily suspended from her post in accordance with the relevant provisions of the Code of Criminal Procedure (see paragraph 23 above), under the domestic law she was not entitled to a salary during the period of suspension (see paragraph 29 above). Accordingly, the Court concludes that the applicant did not have an enforceable claim to a salary for the period during which she was suspended from her post and thus did not work (see also Harovschi v. Moldova (dec.), no. 33852/04, 18 November 2008). As a result, the applicant’s complaint does not constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention.

71. It follows that this complaint must be declared incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

72. The applicant further complained, without invoking any specific provisions of the Convention, that the domestic courts had incorrectly “treated her as a civil servant” and had applied laws which were only applicable to civil servants. She argued that she had worked under an employment contract with the municipality and therefore could not be equated to a civil servant and suspended from her post.

73. The Government in their observations noted that the applicant was not a civil servant under labour law but that for the purposes of criminal law she was considered as a “person of a status equivalent to that of a civil servant” owing to the nature and extent of her administrative powers.

74. The Court reiterates that it is not a court of appeal for the decisions of domestic courts and that, as a general rule, it is for those courts to interpret domestic law and assess the evidence before them. This complaint essentially asks the Court to assess the facts which have led a national court to adopt one decision rather than another and thus disregard the limits imposed on its action (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015, and the cases cited therein). As a result, it must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

75. The applicant also complained, under Article 6 § 1 of the Convention, that the length of the pre-trial investigation had been excessive. The Court has previously found that Lithuanian law provides an effective domestic remedy in cases of excessively long proceedings - a civil claim for damages against the State under Article 6.272 of the Civil Code - and that this remedy must be used before lodging an application with the Court after 6 August 2007 (see Savickas and Others v. Lithuania (dec.), no. 66365/09, §§ 86-88, 15 October 2013). The applicant lodged her application on 4 August 2008 but she had not brought a claim for damages before the domestic courts. Accordingly, the Court holds that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

76. Lastly, the applicant complained, under Articles 3, 6 § 1 and 8 § 1 of the Convention, that she and her young daughter had been subjected to defamation and insults in the media. The Court notes that the applicant raised these complaints before the Inspector of Journalistic Ethics, who partly upheld them, and that she had the right to further complain before the domestic courts but did not do so (see paragraphs 20-22 above). Accordingly, the Court holds that the applicant’s complaint about the articles in the media must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

77. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

78. The applicant claimed 41,360 euros (EUR) in respect of pecuniary damage for lost earnings during her suspension from her post and EUR 100,000 in respect of non-pecuniary damage for suffering and emotional distress caused by the violation.

79. The Government contested those claims as excessive and unsubstantiated.

80. The Court notes that just satisfaction can be awarded in so far as the damage is the result of a violation found, and that no award can be made for damage caused by events or situations which have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible. The Court does not discern any causal link between the violation of Article 6 § 1 found in the present case and the pecuniary damage alleged by the applicant. It therefore rejects this claim.

81. On the other hand, the Court considers that the applicant must have suffered anxiety and distress as a result of the violation found in the present judgment. However, it finds the amount claimed by the applicant excessive. Making its award on an equitable basis, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage.

B. Costs and expenses

82. The applicant also claimed EUR 2,200 for the costs and expenses incurred before the domestic courts and the Court. She submitted receipts for legal assistance, postal expenses and translation, amounting to a total of EUR 238.

83. The Government contested that claim.

84. According to the Court’s case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court will uphold claims for costs and expenses only in so far as they are related to the violations it has found and will reject them in so far as they relate to complaints that have not led to the finding of a violation, or to complaints declared inadmissible. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 100 covering costs under all heads, plus any tax that may be chargeable on that amount.

C. Default interest

85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the right to a public hearing under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention in respect of the lack of oral hearings before the first-instance court;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the lack of notification of the oral hearings before the appellate court;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos András Sajó
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BUTERLEVICIUTE v. LITHUANIA - 42139/08 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 35 (12 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/35.html Cite as: [2016] ECHR 35